The Great Decision

In December 1801, the new capital prepared for its first Christmas under the Jefferson administration, the first “Christmass,” as the local newspapers called it, under a Republican Congress. In fact, the new Republican Congress, the nation’s seventh, was only now convening nearly one year after its election. Congress had adjourned the day of Jefferson’s inauguration and representatives and senators had returned to their home districts and states.

An air of giddiness swept the city. Republicans and Federalists alike delighted in the details of the “Mammoth Cheese” sent to Jefferson for the holiday by “the republican ladies of Cheshire, Massachusetts,” a gift in recognition of Jefferson’s commitment to the separation of church and state. It weighed in at 1,235 pounds, more than a half-ton, and measured four feet four inches in diameter, with a thickness of one foot three inches. The Cheshire ladies had sent the Mammoth Cheese to Washington by sloop, and from Smith’s wharf, it was hauled through the muddy streets by wagon to the President’s House.

The leaders of the new Congress streamed into town. In the Senate, John Breckinridge of Kentucky would be Jefferson’s Republican leader on the floor. Kentucky had been admitted to the union as the fifteenth state in 1792, and Breckinridge conducted himself with a frontier bluntness. In the 1790s, Breckinridge had worked closely with Jefferson and Madison on the Virginia and Kentucky Resolutions rejecting the validity of the Alien and Sedition Acts, and had sponsored the Kentucky Resolution in the state legislature.

For the Federalists, now in the minority, Senator Gouverneur Morris of New York would be in the thick of the action. Morris played a key role in drafting the Constitution—Richard Brookhiser has called him the “rake who wrote the Constitution.” Morris was a bon vivant, a bachelor who loved to dine, drink fine wines, and seduce women despite his portly frame and wooden leg. He had served as ambassador to France during the French Revolution and during that time had carried on an affair with Adelaide Marie Emile, the beautiful and independent Comtesse de Flahut and much younger wife of the aged Count de Flahut. After returning to the United States, he was elected senator from New York in 1800. During most of his public life, he recorded his daily observations in a diary, interspersing accounts of the weather, Senate floor debates, meals, Madeira, and, most cryptically, hunches about whether women had “a good disposition”—whether he could bed them. During his time in Washington, he was particularly enamored of Dolley Madison, the enchanting and enormously attractive wife of Secretrary of State James Madison. Morris often mentioned in his diary spending time with Dolley, and once noted that “Mrs. Maddison . . . has good dispositions which from the shrivelled condition of the secretary are the less to be wondered at.”

In the House, the new Republican Speaker would be Nathaniel Macon of North Carolina. In the first official action of the Seventh Congress, on December 7, 1801, the House elected Macon Speaker over the Federalist candidate, James Bayard of Delaware, by a 53-26 vote (with 2 votes for another representative). Macon was a Jeffersonian fiercely committed to limiting the size and power of the federal government. He had passionately opposed ratification of the Constitution. Bayard, the Delaware congressman who had broken the presidential election logjam in February 1801, had emerged as the leader of the shrunken band of Federalists in the House.

For the Republicans, the dawn of a glorious new age had arrived. The Republican National Intelligencer hailed “the first sittings of the first truly Republican Congress.” William Duane, editor of the Philadelphia-based Aurora, announced that he would move to Washington during the congressional debates so that he could report “with regularity and fidelity in the approaching important session.”

But, for the Federalists, the opening of the new Congress was a time of dread and foreboding. “The present session of Congress will command more attention, and excite more anxiety,” the Washington Federalist proclaimed, “than any preceding. A new scene opens. . . . [T]he winds become adverse, the tide shifts, the moon of democracy yields a dying light, the helmsman is drunk with power and passion.”

From the Federalist perspective, everything about Jefferson was wrong, even his use of language, a popular target of ridicule in the pages of the Washington Federalist. The newspaper mocked him for describing “four pillars of prosperity” as “thriving,” an inelegant metaphor that he included in his State of the Union address. No issue, however, enraged the Federalists more than Jefferson’s removal from office of selected Federalist officials and his perceived interference with Adams’s midnight judicial appointments. The subject dominated political conversation. Federalists claimed that Jefferson, acting on flimsy pretexts and what the Federalist called “a spirit of apparent revenge,” had removed or blocked honest, hard-working officials for abject partisan reasons.

Jefferson differentiated somewhat between political and judicial appointments. With nonjudicial appointments, Jefferson occasionally took the view that any appointment made after Adams had lost the election was invalid and Jefferson exercised his power of removal. One celebrated example involved the Collector of the Port in New Haven, Connecticut. Adams had appointed Elizur Goodrich on February 19, 1801, less than two weeks before leaving office. Jefferson removed Goodrich and instead appointed Samuel Bishop, a 77-year-old patriarch of a leading local Republican family, a rare species in Federalist Connecticut. Seventy-eight “merchants of New Haven” sent Jefferson an angry, widely publicized “remonstrance” complaining about Bishop’s appointment.

Jefferson issued a point-by-point reply to the merchants. He rejected their criticism of Bishop’s age by invoking the revered Benjamin Franklin: “[A]t a much more advanced age our Franklin was the ornament of human nature.” He blasted what he saw as the partisan nature of Adams’s appointments: “[D]uring the late administration, those who were not of a particular sect of politics were excluded from all office. . . . [B]y a steady pursuit of this measure, nearly the whole offices of the US were monopolized by that sect.” He left no doubt that the midnight appointments, made by Adams on his way out of office, rankled. He objected to “persons appointed in the last moments of an administration, not for its own aid, but to begin a career at the same time with their successors, by whom they had never been approved, and who could scarcely expect from them a cordial cooperation.” Any “displacements” necessary to reflect “the will of the nation” and “an administration of government according with the opinions of those elected” should begin with these last-minute appointments.

As far as the judicial appointments were concerned, Jefferson generally recognized that his hands were tied. But if he found any imperfection with the appointment, he stopped it. In a much publicized incident, a federal judge failed to win a seat on the bench because, in the haste of the midnight appointments, his commission had been filled out erroneously. Jefferson refused to reissue a corrected commission.

The public debate did not initially focus on the justices of the peace whose commissions had not been delivered. But their situation perfectly reflected what Federalists saw as Jefferson’s interference with legitimate and duly appointed office holders. Some Federalists, bent on revenge, even began discussing the possibility of Jefferson’s impeachment—a suggestion that was both laughable and impossible in light of the lopsided Republican majority in both houses, but which illustrated the depth of Federalist fury.

Throughout December 1801, Republican newspapers such as the Aurora and the National Intelligencer launched vitriolic attacks on the Federalists. In one issue of the Aurora, for example, Duane casually described Federalists as “idiots” on the front page. Duane also obtained letters that had been left by an editor of the Federalist at Stelle’s Hotel in Washington. He gleefully quoted from them on the front page of the Aurora, an embarrassment that led the Federalist to publish an angry offer of a $50 reward for the recovery of the letters or information about their theft.

The members of the new Congress followed the Washington press wars closely. Of the thirty-two senators in the Seventh Congress, thirteen had subscriptions to both the National Intelligencer and the Washington Federalist, ten read only the National Intelligencer , and seven read only the Washington Federalist. Only two senators refused to have a subscription to either newspaper.

Not everything in the newspapers in December 1801 was deadly serious. Alongside the Aurora’s attacks on the Federalists, the paper regularly printed advertisements touting visits to a “Learned Pig” who could read and speak, add, subtract, and multiply, and tell time (“both the hours and the minutes”). The pig was “A Curiosity, in which The Public will not be Disappointed,” and it could be seen for a mere twenty-five cents, half-price for children. Newspapers of all stripes in the new capital also regularly announced the publication and availability of new books, including the new two-volume Nocturnal Visit, and other diversions, such as horse racing challenges. New businesses and trades continued to sprout to serve the bustling new capital. “Dr. Tongue” announced the opening of his practice in “physick and particularly surgery” on Pennsylvania Avenue near the War Office; he had been “a private pupil of Dr. Rush, from whom very satisfactory information can be given of his qualifications as a physician.”

As the month began, the Supreme Court also returned to Washington for its December sitting. At Marshall’s urging, the justices again stayed together at Conrad and McMunn’s boardinghouse on Capitol Hill, the same hotel where Jefferson had lived prior to his inauguration. Even though Stelle’s Hotel was where many Federalist congressmen lived, Marshall chose an establishment that had a decidedly more Republican clientele. The boardinghouse, originally a residence, had been converted into a hotel by two experienced innkeepers from Alexandria, Virginia. It was on the south side of Capitol Hill and, according to Margaret Bayard Smith, “was on the top of the hill, the precipitous sides of which were covered with grass, shrubs and trees in their wild uncultivated state . . . and [it] commanded an extensive and beautiful view.”

The Court’s business was fitful. On December 7, it tried to meet but could not because it lacked a quorum—only two of the six justices were present. On December 8, the Court convened again in the bleak confines of Committee Room Two, one floor below the House of Representatives. All of the justices except Alfred Moore now were on hand. The Court convened and then abruptly adjourned at 11:00 A.M. so that the justices could hear President Jefferson’s first State of the Union address.

Jefferson broke with tradition. Unlike Washington and Adams, he did not deliver it personally but instead sent the message to be read by the Clerk of the House—an action, predictably, lauded as a gesture of democracy by Republicans and derided as an insulting stunt by Federalists. (Presidents would continue to deliver the State of the Union in writing for more than a century, until Woodrow Wilson restored the tradition of personal appearances in 1913.) Jefferson sent his State of the Union speech to the Capitol with Meriwether Lewis, his talented young aide and secretary, whom Jefferson would appoint eighteen months later to head an expedition with William Clark to explore the unknown West.

Jefferson’s speech sounded familiar themes. He began with foreign affairs, on which there was a rare consensus. Jefferson noted that the most pressing immediate trouble spot was Tripoli and the Barbary States. The president gave a full accounting of his use of the Navy in Tripoli over the summer, and he sought congressional support.

Jefferson then turned to domestic affairs. He suggested that the federal government had grown too large and cumbersome, weighed down by unnecessary bureaucracy. It could be reduced, he went on, and federal taxes (on goods, because there was no federal income tax) could be cut or eliminated. This was the Republicans’ sweet spot, and the Federalists’ sore spot. Federalists not only objected to Jefferson’s proposal to slash the federal government; they took the criticism personally as an attack on the Adams and Washington administrations. For Jefferson, however, it fit a philosophy in which “the States themselves have principal care of our persons, our property, and our reputation,” and “agriculture, manufactures, commerce, and navigation” are “most thriving when left most free to individual enterprise.” The fact that Federalist appointees would be removed by the Jefferson administration, with the elimination of their federal offices, was unmentioned but unmistakable.

Jefferson went on to address the Judiciary Act, which, after its passage in the last days of the Adams administration, had led to the expansion of the federal judiciary and the appointment of the midnight judges. He suggested that the Act might well be altered: “The judiciary system of the United States, and especially that portion of it recently enacted, will of course present itself to the contemplation of Congress.” Jefferson pointedly noted that he had requested a report on the workload of the federal courts, and of the cases “which were depending when additional courts and judges were brought in to their aid.” The message was clear—he was gathering evidence to make a case that the new judges were unnecessary.

Even more interesting than Jefferson’s comments about the judiciary was a passage that he deleted from the speech shortly before he sent it to Congress. In that passage, Jefferson initially noted that he had received “[a]pplications from different persons suffering prosecution under the act usually called the Sedition act.” Jefferson observed that “our country has thought proper to distribute the powers of it’s government among three equal & independent authorities, constituting each a check on one or both of the others, in all attempts to impair it’s constitution.”

According to Jefferson, each branch’s judgment of the constitutionality of its own actions must be final and unreviewable. “[T]o make each an effectual check, it must have a right in cases which arise within the line of it’s proper functions, where, equally with the others, it acts in the last resort & without appeal, to decide on the validity of an act according to it’s own judgment, & uncontrouled by the opinions of any other department ” (emphasis added). Jefferson emphasized his view that each administration was not bound by the constitutional views of its predecessors. “Succeeding functionaries have the same right to judge of the conformity or non-conformity of an act with the constitution, as their predecessors who [passed] it. For if it be against that instrument it is a perpetual nullity.” Jefferson concluded by declaring that he had found the Sedition Act “to be in palpable & unqualified contradiction to the constitution,” and therefore “a nullity.”

It was a remarkable discussion. Jefferson emphasized that each branch of the government was the final judge of the constitutionality of its own actions. Although Jefferson’s views were expressed in a context in which he was finding unconstitutional actions that other branches might have deemed constitutional (namely the Sedition Act), his language about the unreviewability of a branch’s actions were not limited to instances in which a president found action unconstitutional. He explicitly referred to the finality of a branch’s views on the “conformity or non-conformity” of an Act with the Constitution—thereby holding out the possibility of one branch finding its actions constitutional even if another branch found them unconstitutional. Jefferson was likely reflecting his displeasure with the Sedition Act, which he vehemently opposed on constitutional grounds; he recognized that the federal courts, and justices riding circuit, had applied it enthusiastically.

Until the last minute, Jefferson kept this momentous passage in his State of the Union address. But, shortly before sending the address to Congress on the morning of December 8, 1801, he deleted it. Jefferson noted in the margin of his draft that he had deleted it only because he feared the uses that the Federalists would make of his position: “This whole paragraph was omitted as capable of being chicaned, and furnishing something to the opposition to make a handle of. It was thought better that the message should be clear of everything which the public might be made to misunderstand.”

Many Federalists reacted acidly to the speech that Jefferson did send. Hamilton decried Jefferson’s comments about the judiciary as “the symptom of a pigmy mind.” Fisher Ames of Massachusetts objected that the “message announces the downfall of the late revision of the Judiciary. . . . The U.S. Government is to be dismantled like an old ship.” The Washington Federalist lambasted Jefferson’s address. The “attack upon the independence of the judiciary” was “the first part of a system which, if pursued, will plunge our unhappy country into all the miseries of civil war, anarchy and despotism.” (The newspaper noted that it agreed enthusiastically with one part of Jefferson’s address—his call for the elimination of postage on newspapers.) Other Federalists were less hostile. John Quincy Adams, son of the defeated president, stoically noted that “the violence of party spirit has very much subsided.”

With the State of the Union address delivered, the Supreme Court justices got down to business. The marquee case for the December session was similar to the one the court had heard four months earlier in that it involved the seizure of a ship on the high seas. The Peggy, a French schooner, had been captured as a “prize” by American seamen in 1800 before the Mortefontaine treaty with France. The treaty provided that all property “captured and not yet definitively condemned” must be returned. The French owners accordingly sought the return of their ship and cargo: The schooner had not been “definitively” condemned, they argued, because their suit to recover the ship and cargo was pending. The case had become a cause célèbre in federal court in Connecticut. Jefferson had ordered the return of the ship and cargo to the French owners. Sitting on circuit, however, Justice Cushing had ruled that Jefferson’s order was erroneous and invalid. Now the case was before the Supreme Court, and spectators wondered whether the new Marshall Court was headed for a confrontation with the new administration.

Sitting in the cramped confines of Committee Room Two, the justices heard arguments in the case for several days. (All of the justices were present except the frequently absent Alfred Moore, who was ill and never showed up for the December sitting.) Ultimately, on December 21, 1801, Marshall issued a unanimous opinion upholding Jefferson’s position without ever mentioning the president. Even Cushing reversed course and joined Marshall’s opinion, which interpreted the treaty and emphasized that, under the Constitution, a treaty is “the supreme law of the land.” A high-stakes confrontation between Jefferson and the Federalists on the Supreme Court had been avoided—at least for the moment.

Meanwhile, however, on Wednesday, December 16, 1801, former Attorney General Charles Lee, Marshall’s colleague from the Adams cabinet, appeared before the Court with a curious request. Lee represented four men who had been nominated by the president as justices of the peace in the District of Columbia and confirmed by the Senate. Dennis Ramsay, Robert Hooe, and William Harper had been appointed to be justices in Alexandria County; and William Marbury had been appointed to be a justice in Washington County. Their presidential commissions never had been delivered, and they had not been permitted to take office.

The four plaintiffs were all prominent citizens and well-known community leaders in Alexandria. Dennis Ramsey had served as mayor of Alexandria in 1789 and had given the farewell address to George Washington as the general left Virginia to go to New York to be sworn in as the First President of the United States. At an emotional ceremony Ramsey praised Washington as “[t]he first and best of citizens” and spoke for Washington’s “neighbors and friends” in applauding “the spontaneous and unanimous suffrage of three millions of free men in your election to the supreme magistracy.” Ramsey had been one of six of Washington’s old army friends to be selected as an honorary pallbearer at Washington’s funeral while Colonel William Harper had commanded an artillery company at the funeral. Harper, the father of twenty-nine children, was an Alexandria merchant who had served as a captain in the Revolutionary War and wintered at Valley Forge. Robert Hooe was a former sheriff of Fairfax County who had made a small fortune in real estate.

The fourth was from Maryland. Since moving to Georgetown from Annapolis in 1800, William Marbury had become one of the city’s leading businessmen and most prominent Federalists. In 1799 Marbury had been named to the Board of Directors of the Bank of Columbia and the following year became the naval agent for the Port of Georgetown. He was also a manager of the dancing assemblies for the social elite and the head of the Federalist Party in Georgetown. He owed his rapid rise to Benjamin Stoddert, Adams’s former secretary of the Navy, whom Marbury had helped when Stoddert faced financial difficulties. After Stoddert left office in 1801, Marbury lost his position. A little more than four months after Jefferson’s inauguration, on July 9 1801, Jefferson’s secretary of war, Henry Dearborn, fired Marbury from his job as naval agent. Marbury was tagged with enormous cost overruns in the construction of a seventy-four-gun ship. On July 9, Dearborn wrote Marbury: “The continuance of a Navy Agent at this place being considered unnecessary you will please to deposit in this office the contract or other public papers now in your possession . . . and deliver all other public property now in your possession. You will consider your agency as discontinued upon receipt of this letter.” Marbury was undoubtedly resentful. Not only had he been denied a justice-of-the-peace position, now he was being sacked by the Jefferson administration from his job as naval agent.

Lee filed affidavits from the four would-be justices of the peace. Their affidavits explained that they had been nominated by the president and confirmed by the Senate, and that pursuant to the president’s instructions their commissions had been prepared, but they had never received them. The plaintiffs also announced that they recently had gone to see Madison to ask him for their commissions. Madison had told them that he was too busy to meet with them and they should see Jacob Wagner, the chief clerk of the State Department. Wagner, in turn, had told them that he didn’t know what had happened to the documents—if they still even existed—and that they should check with Levi Lincoln, the attorney general, who had been acting secretary of state at the beginning of the Jefferson administration. But Lincoln also had not been helpful about the status or location of the commissions.

Next, the would-be justices had petitioned the Senate to turn over any records of the nominations in order to establish evidence of the appointments. But the Senate ignored them. Now they were telling the Court that they had been given the runaround. Only judicial action could give them their lawful positions.

Although Marbury and his colleagues failed to explain their timing, perhaps Jefferson’s State of the Union speech the preceding week, the sitting of the new Republican Congress, and the swirling charges and countercharges about midnight appointments and Executive removals had prompted their suit to reclaim these highly valued offices. Shortly before Jefferson’s State of the Union address, the Washington Federalist had warned Jefferson that he would be challenged on his interference with Federalist appointees and office holders. “After the political intolerance shown by you,” the paper had intoned, “be not surprised, Sir, if in return you shall find your political principles brought to the standard of the constitution. . . . [B]e not surprised, if you shall find the conduct of yourself and those with whom you have become intimately connected in opposition to the past administration recalled to the public consideration and exposed in new points of view.” The threat just days before Marbury and his allies filed suit may well have been based on inside knowledge in Federalist circles that a broadside against the administration would be filed imminently in the Supreme Court.

Lee presented his motion on behalf of Marbury and the other plaintiffs to the justices on Thursday, December 17. The five justices listened intently from their perch in Committee Room Two. Lee read the affidavits detailing that the men had been nominated and confirmed, with their commissions prepared and the Great Seal affixed to them. Lee also drew on his own experience as a cabinet official. He noted that, in his experience in the government, commissions were “esteemed done” when they were “delivered for entry” by the secretary of state’s office, even if they sat in the office for several weeks. Nobody needed reminding that Lee’s colleague as secretary of state at the time these very commissions were prepared, nine months previously, had been Chief Justice John Marshall.

When Lee finished, Marshall turned to Levi Lincoln, Lee’s successor as attorney general, and asked him for the position of the defendant, Secretary of State James Madison. Lincoln replied that he had no instructions on the issue. Madison had received notice of the lawsuit the preceding day, but the secretary of state could not immediately turn his attention to the subject. Lincoln would “leave the proceedings under the discretion of the Court.” The Jefferson administration was treating the Marbury proceedings with disdain: It was ignoring the Supreme Court.

Sitting in open court, Marshall turned to his colleagues and asked them how they would like to proceed. The hot-tempered Samuel Chase was ready to rule immediately. He said that, if there were some additional offers of proof supporting everything Lee had said, he was prepared to decide at once. The other justices were more cautious. Marshall announced that the Court would take the matter under advisement. Encouraged by Chase’s comments, Lee announced that he would amend the affidavits to include a statement that the Great Seal of the United States actually had been affixed to the commissions.

The Aurora, which had promised to report any Supreme Court actions “of consequence,” prominently covered the argument. The paper noted that the justice-of-the-peace positions had been “of the long and last batch of creations” in the Adams administration. The Aurora did not hide its contempt for the plaintiffs, their motion, and their lawyer. “Some conversation took place on the etiquette of sealing and recording commissions,” the paper noted, “and Mr. Lee said the law spoke big words” (original emphasis). The paper described Marbury himself as “one of those concerned with Stoddert, Forrest, etc. [prominent Washington investors] who have made so much noise in the contracts for timber and banking affairs.” The Aurora also reported the firestorm that the case had generated. “The tories talk of dragging the President before the court and impeaching him, and a wonderful deal of similar nothingness. But it is easy to perceive that it is all fume which can excite no more than a judicious irritation.”

The next day, on Friday, December 18, Marshall announced the Court’s preliminary decision. The Court would allow Marbury’s action to proceed. Marbury and the other plaintiffs had been “credibly informed” that they had been nominated and confirmed; that their commissions had been prepared and issued, with the Great Seal of the United States affixed; that the commissions had not been delivered; and that Madison—or “Maddison,” as the Supreme Court order consistently misspelled his name—had refused to deliver the commissions or give a “satisfactory” explanation. The Court ordered Madison to “show cause,” if “any he hath,” why the Court should not issue the writ of mandamus ordering him to deliver the commissions. Madison—and Jefferson—would have to justify their actions in blocking the confirmed justices of the peace from assuming their posts. Finishing with a flourish, Marshall announced that arguments in the case would be heard the fourth day of the next term, in June 1802.

For many Republicans, the Court’s order was an act of shocking audacity. The Supreme Court would force Jefferson and Madison to justify their actions about who would hold office! Senator John Breckinridge sounded the alarm to Virginia Governor James Monroe, a close Jefferson ally, on Christmas Eve: “The consequences of invading the Executive in this manner are deemed here a high-handed exertion of Judiciary power.” Breckinridge added that nothing of practical importance would come of the case, but that its symbolic stakes would be enormous: “[T]he intention of the gentleman is to stigmatize the Executive, and give the opposition matter for abuse and vilification. . . . They may think that this will exalt the Judiciary character, but I believe that they are mistaken.” For Breckinridge, there would be no further hesitation about whether a frontal Republican assault on the judiciary was warranted. The battle over the midnight judges would be fully joined.

The Aurora tersely reported the Court’s decision. It also printed a letter attacking the order as “a high-handed exertion of Judiciary power,” without identifying the author. The paper noted that the Supreme Court’s order had been considered “a bold stroke against the Executive authority of the government” and that “it is supposed [the commissions] were disposed of with the other waste-paper and rubbish of the office.”

Always watchful, Jefferson reacted with veiled apprehension. The day after the Supreme Court’s order, on Saturday, December 19, 1801, Jefferson wrote to John Dickinson that “[t]he Federalists have retired into the judiciary as a stronghold, and from that battery all the works of republicanism are to be beaten down and erased.” And, the following day, Sunday, December 20, Jefferson advised Dr. Benjamin Rush that, although he was pleased about his progress with the new Congress, he feared trouble on the question of the judiciary and removals. “Our winter campaign has opened with more good humor than I expected. By sending a message, instead of making a speech at the opening of the session, I have prevented the bloody conflict to which the making of an answer would have committed them. . . . Hitherto there has been no disagreeable altercations.” But at the same time, with an eye on the horizon, Jefferson noted that the “lopping off” of midnight judges and the “suppression of useless offices” would lead to serious problems.

The Federalists, meanwhile, did not immediately react to the Court’s preliminary order in Marbury. The Washington Federalist reported the Supreme Court’s action on its front page, but without any additional comment. The newspaper continued to be focused instead on the possible repeal of the Judiciary Act, which had been passed just ten months earlier. In the same issue in which it reported the Marbury order, the paper printed a column attacking repeal as “part of the systematic plan for the total subversion of the constitution itself,” a “complete destruction of the independence of an integral part of the government,” and the introduction of “a system of corruption into the sanctuary of Justice.”

The Federalists’ warm social relations with the Federalist-appointed justices and judges continued. Senator Gouverneur Morris arrived in Washington on Friday, December 18, the day that Marshall issued the show-cause order in Marbury. The next night, he paid an evening call on Justice Paterson and happily noted that he saw “there the Bench”—Paterson’s judicial brethren—along with Congressman James Bayard of Delaware. Morris did not mention whether they discussed the Court’s order issued the day before.

The momentous year of 1801, which had opened with an unresolved presidential election and which eventually had witnessed the nation’s first democratic transition to an opposing party, was drawing to a close. President Jefferson had settled into the President’s House. In the war with Barbary, the U.S.S. Enterprise had seized the ship Tripoli. As relations with France became more strained, President Jefferson named Robert Livingston as the new American envoy. Domestically, Jefferson was quietly planning an expedition to explore the American West.

In Washington, a contract finally had been signed in June to build a chamber for the House of Representatives. President Jefferson had been presented with three options and had chosen the least expensive, “an elliptical room measuring 94 feet long and 70 feet wide with sixteen arches and fourteen windows.” The structure had been completed by November, but the construction had been rushed and the workmanship was visibly shoddy in places.

As Bayard, Morris, and the justices merrily celebrated the approaching holiday, the battle lines for the coming year were forming. With John Marshall’s order to James Madison suggesting that the Supreme Court was inclined to overrule Jefferson’s actions on the justices of the peace, and with the Republicans determined to launch an assault on Adams’s midnight judges, the capital braced for a new round of political warfare.